Page:EB1911 - Volume 27.djvu/711

Rh special representative, the Senate; and that body thus obtained its power to act as an executive council as a restraint on the president in appointments and treaties. This was the only survival of the first alignment

of parties; but new divisions arose on almost every proposal introduced. The election of the president was given at various times to Congress and to electors chosen by the state legislatures; and the final mode of choice, by electors chosen by the states, was settled only two weeks before the end of the convention, the office of vice-president coming in with it. The opponents and supporters of the slave trade compromised by agreeing not to prohibit it for twenty years. Another compromise included three-fifths of the slaves in enumerating population for representation. This provision gave the slaveholders abnormal power as the number of slaves increased.

91. Any explanation of the system introduced by the Constitution must start with the historical fact that, while the national government was practically suspended, from 1776 until 1789, the only power to which political privileges had been given by the people was the states, and that the state legislatures were, when the convention met, politically omnipotent, with the exception of the few limitations imposed on them by the early state constitutions; The general rule, then, is that the Federal government has only the powers granted to it by the Federal Constitution, while the state has all governmental powers not forbidden to it by the state or the Federal Constitution. But the phrase defining the Federal government’s powers is no longer “expressly granted,” as in the Articles of Confederation, but merely “granted,” so that powers necessary to the execution of granted powers belong to the Federal government, even though not directly named in the Constitution. This question of the interpretation or “construction” of the Constitution is at the bottom of real national politics in the United States: the minimizing parties have sought to hold the Federal government to a strict Construction of granted powers, while their opponents have sought to widen those powers by a broad construction of them. The strict-construction parties, when they have come into power, have regularly adopted the practice of their opponents, so that construction has pretty steadily broadened.

92. Popular sovereignty, then, is the basis of the American system. But it does not, as does the British system, choose its legislative body and leave unlimited powers to it. It makes its “Constitution” the permanent medium of its orders or prohibitions to all branches of the Federal government and to many branches of the state governments:

they must do what the Constitution directs and leave undone what it forbids. The people, therefore, are continually laying their commands on their governments; and they have instituted a system of Federal courts to ensure obedience to their commands. A British court must obey the act of parliament; the American court is bound and sworn to obey the Constitution first, and the act of Congress or of the state legislature only so far as it is warranted by the Constitution. But the American court does not deal directly with the act in question; it deals with individuals who have a suit before it. One of these individuals relies on an act of Congress or of a state legislature; the act thus comes before the court for examination; and it supports the act or disregards it as “unconstitutional,” or in violation of the Constitution. If the court is one of high rank or reputation, or one to which a decision may be appealed, as the United States Supreme Court, other courts follow the precedent, and the law falls to the ground. The court does not come into direct conflict with the legislative body; and, where a decision would be apt to produce such a conflict, the practice has been for the court to regard the matter as a “political question” and refuse to consider it.

93. The preamble states that “we, the people of the United States,” establish and ordain the Constitution. Events have shown that it was the people of the whole United States that established the Constitution, but the people of 1787 seem to have inclined to the belief that it was the people of each state for itself. This belief was never changed in the South; and in 1861 the people of that section believed that the ordinances of secession were merely a repeal of the enacting clause by the power which had passed it, the people of the state. An account of the form of government established by the Constitution appears elsewhere (see —Constitution and Government, pp. 646 sqq.).

94. The Constitution’s leading difference from the Confederation is that it gives the national government power over individuals. The Federal courts are the principal agent in securing this essential power; without them, the Constitution might easily have been as dismal a failure as the Confederation. It has also been a most important agent in securing to the

national government its supremacy over the states. From this point of view the most important provision of the Constitution is the grant of jurisdiction to Federal courts in cases involving the construction of the Constitution or of laws or treaties made under it. The

25th section of the Judiciary Act of 1789 permitted any Supreme Court justice to grant a writ of error to a state court in a case in which the constitutionality of a Federal law or treaty had been denied, or in which a state law objected to as in violation of the Federal Constitution had been maintained. In such cases, the defeated party had the right to carry the “Federal question” to the Federal courts. It was not until 1816 that the Federal courts undertook to exercise this power; it raised a storm of opposition, but it was maintained, and has made the Constitution what it professed to be—“the

supreme law of the land.” Treason was restricted to the act of levying war against the United States, or of adhering to their enemies, giving them aid and comfort. The states, however, have always asserted their power to punish for treason against them individually. It has never been fully maintained in practice; but the theory had its effect in the secession period.

95. The system of the United States is almost the only national system, in active and successful operation, as to which the exact location of the sovereignty is still a mooted question. The contention of the Calhoun school—that the separate states were sovereign before and after the adoption of the Constitution, that the Union was purely voluntary, and that the

whole people, or the people of all the other states, had no right to maintain or enforce the Union against any state—has been ended by the Civil War. But that did not decide the location of the sovereignty. The prevalent opinion is still that first formulated by Madison: that the states were sovereign before 1789; that they then gave up a part of their sovereignty to the Federal government; that the Union and the Constitution were the work of the states, not of the whole people; and that reserved powers are reserved to the people of the states, not to the whole people. The use of the bald phrase “reserved to the people,” not to the people of the several states, in the 10th amendment, seems to argue an underlying consciousness, even in 1789, that the whole people of the United States was already a political power quite distinct from the states, or the people of the states; and the tendency of later opinion is in this direction. The restriction to state lines seems to be a self-imposed limitation by the national people, which it might remove, as in 1789, if an emergency should make it necessary.

96. By whatever sovereignty the Constitution was framed and imposed, it was meant only as a scheme in outline, to be filled up afterwards, and from time to time, by legislation. The idea is most plainly carried out in the Federal judiciary: the Constitution only directs that there shall be a Supreme Court, and marks out the general jurisdiction of all the courts,

leaving Congress, under the restriction of the president’s veto power, to build up the system of courts which shall best carry out the design of the Constitution. But the same idea is visible in every department, and it has carried the Constitution safely through a century which has radically altered every other civilized government. It has combined elasticity with the limitations necessary to make democratic government successful over a vast territory, having infinitely diverse interests, and needing, more than almost anything else, positive opportunities for sober second thought by the people. A sudden revolution of popular thought or feeling is enough to change the House of Representatives from top to bottom; it must continue for several years before it can make a radical change in the Senate, and for years longer before it can carry this change through the judiciary, which holds for life; and all these changes must take place before the full effects upon the laws or Constitution are accomplished. But minor changes are reached in the meantime easily and naturally in the course of legislation. The members of the Convention of 1787 showed their wisdom most plainly in not trying to do too much; if they had done more they would have done far less.

97. The convention adjourned on the 17th of September 1787, having adopted the Constitution. Its last step was a resolution that the Constitution be sent to the Congress of the Confederation, with the recommendation that it be submitted to conventions elected by the people of each state for ratification or rejection; that, if nine states

should ratify it, Congress should appoint days for the popular election of electors, and that then the new* Congress and president should, “without delay, proceed to execute this Constitution.” Congress resolved that the report of the convention be sent to the several legislatures, to be submitted to conventions; and this was all the approval the Constitution ever received from Congress. Both Congress and the convention were careful not to open the dangerous question, How was a government which was not to be changed but by the legislatures of all the states to be entirely supplanted by a different system through the approval of conventions in three-fourths of them? They left such questions to be opened, if at all, in the less public forum of the legislatures.

98. Before the end of the year Delaware, Pennsylvania and